As we have previously mentioned, an extensive amendment to the provisions of the Civil Code regulating the sale of goods in shops, including new legislation on goods with digital elements, is being prepared. In this legal circular, we shall outline how, according to this amendment, the legislative regulation of the buyer’s rights in the case of a defect in the thing and its complaint should appear. We are aware that in practice traders sometimes confuse situations involving withdrawal from a contract by a consumer without giving a reason (within 14 days) and the assertion of defects in goods by a buyer (complaint). However, it is necessary to distinguish these rather strictly, inter alia, for the reason that in the case of defects in a thing, the situation already concerns a breach of a legal obligation by the trader (breach of the obligation to perform without defects).

According to the anticipated wording of Section 2169 of the Civil Code, the primary method of remedying defective goods is the removal of the defect. The removal of the defect is to have two forms, namely the delivery of a new thing without a defect or the repair of the thing. However, the seller shall be able to refuse the removal of the defect in goods by these two methods if such removal of the defect is “impossible or disproportionately costly, particularly having regard to the significance of the defect and the value which the thing would have without the defect.” If such a refusal occurs by the trader, the buyer shall be entitled to “demand a reasonable reduction in price or withdraw from the contract” (see below).

However, if the seller does not refuse the removal of the defect by the aforementioned two methods, the buyer is to have the right to choose which method of removing the defect he prefers, i.e. whether he demands the delivery of a new thing without a defect, or whether he demands the repair of the thing. The buyer is not to have such a right only in cases where the “chosen method of removing the defect is impossible or, in comparison with the other, disproportionately costly…” The assessment of this question is to take place “particularly having regard to the significance of the defect, the value which the thing would have without the defect, and whether the defect can be removed by the other method without considerable difficulties for the buyer.” This means that in such a situation the seller may assess whether the method of removing the defect chosen by the buyer is not impossible or, in comparison with the other, disproportionately costly. If this is the case, we are of the opinion that the seller should have the right to remove the defect in the thing by the other method.

As stated above, if the removal of the defect in goods (by delivery of a new piece of goods or its repair) is refused by the seller as impossible or disproportionately costly, the solution comes either through a reduction in the purchase price, or by withdrawal from the purchase contract by the buyer. However, the buyer shall not be able to withdraw from the purchase contract if the “defect in the thing is insignificant.” At the same time, a legal presumption is established that a defect in a thing is considered insignificant. Irremovable but nevertheless insignificant defects in goods are therefore to be resolved by a reasonable reduction in the purchase price. According to the provision of Section 2171(2) of the Civil Code, the reasonable reduction is to be determined “as the difference between the value of the thing without a defect and the defective thing which the buyer received.” This also applies to other cases where a complaint regarding goods is to be resolved by a reduction in the purchase price.

Further cases where the buyer shall be entitled to withdraw from the contract (with the above-mentioned limitation in the area of insignificant defects) are situations where the seller has not removed the defect, the defect manifests itself repeatedly, the defect constitutes a material breach of contract, or “it is apparent from the seller’s statement or from the circumstances that the defect will not be removed within a reasonable time or without considerable difficulties for the buyer.”

Josef Aujezdský

This text was originally prepared by the law firm Mašek, Kočí, Aujezdský in cooperation with the Association for Electronic Commerce (APEK) as legal circular No. 7/2021 intended for members of this association.

This text was translated from Czech to English using an AI translator.